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Saturday, July 23, 2011

The Wal-Mart v. Dukes Decision: The Gift That Keeps On Giving... To Corporations

When the Supreme Court ruled in Wal-Mart v. Dukes that female employees of the retail giant couldn't form a class action to hold Wal-Mart accountable for its discriminatory behavior, it was widely seen as a victory not just for Wal-Mart, but for giant corporations across the country. The decision meant that individuals had lost a vital legal tool to level the playing field against the power of corporations in the courtroom.

A Saginaw County judge ruled this week that a recent U.S. Supreme Court decision means that property owners in the dioxin-contaminated Tittabawasee floodplain cannot sue Dow Chemical for damages in a class action.

Operations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals,through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.

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Since 2003 a group of about 150 Tittabawassee property owners have been trying to sue Dow as a group on behalf of the more than 2,000 people with property in the floodplain.The plaintiffs claim that they are not able to fully use their properties because of the contamination and that their properties have lost value. Dow has acknowledged that the dioxin contamination came from its operations but insists that it is not harmful to residents.

In the battle over certification of class status Dow has argued that because the level of pollution on the contaminated parcels varies, the property owners should not be treated as a group.

The Wal-Mart decision raised the bar for what could be considered a "class" and thus made it more difficult for individuals to band together to fight corporate overreach and misbehavior. Dow's lawyers took advantage of the Supreme Court's corporate giveaway, and property owners in Michigan are paying the price.